Every judge must respect and comply with the law, including The Rules Governing Judicial Conduct found in 22 NYCRR part 100. Matter of O'Connor, 32 NY3d 121, 125 (2018). The judicial misconduct discussed herein differs from that of judges whose behavior and rulings have been found on appeal to have deprived litigants of a fair trial, resulting in reversal of a verdict and a new trial, sometimes before another judge.
In 1978, the current Commission on Judicial Conduct (the Commission) was created by an amendment to the State Constitution to review complaints of ethical misconduct against judges and justices of the State Unified Court System. When the Commission’s determination of admonition, censure, removal or retirement from office is made, the record on which the determination is based is filed with the Chief Judge of the Court of Appeals.
The determination and record then is served on the respondent-judge, who has 30 days to accept the Commission's determination, which then becomes final, or have it reviewed by the Court of Appeals; if requested, such review is mandatory.
In judicial misconduct cases, the Court of Appeals has authority to review the Commission's findings of fact and conclusions of law and to accept or reject “the sanction determined by the commission, impose a different sanction, or impose no sanction at all.” Judiciary Law §44, subd. 9; N.Y. Const., art. VI, §22 [d]. In addition to reviewing the proceedings below for errors of law, the Court is “required to review the findings of fact made by the commission.” Matter of Cunningham, 57 NY2d 270, 274 (1982).
The “purpose of judicial disciplinary proceedings is ‘not punishment but the imposition of sanctions where necessary to safeguard the Bench from unfit incumbents.’” Matter of Reeves, 63 NY2d 105, 111 (1983). Since 1978, the Commission concluded that removal from office was the appropriate sanction in 188 cases, of which 140 involved Town & Village Justices (125 non-lawyers and 15 lawyers) and 48 other judges. Another 361 judges were subject to public censure. NYS Commission on Judicial Conduct, Chart totals as of April 8, 2026.
The Court of Appeals reviewed 102 of the Commission’s determinations that the charged judge or justice had committed certain acts of misconduct warranting imposition of the “extreme sanction” of removal, which should be imposed “only in the event of truly egregious circumstances,” where a jurist has exhibited “’a pattern of injudicious behavior … which cannot be viewed as acceptable conduct by one holding judicial office.’” Matter of Miller, 35 NY3d 484, 489 (2020). It “should not be ordered for conduct that amounts simply to poor judgment, or even extremely poor judgment.” Matter of O’Connor, 32 NY3d 121, 127 (2018).
We will discuss some of the cases to illustrate the type of judicial misconduct that can result in removal from office. When looking at them, it should be remembered that judges “must be held to a higher standard of conduct than the public at large.” Matter of Mulroy, 94 NY2d 652, 658 (2000).
Whether a judge's behavior constitutes “‘truly egregious' conduct is a fact-specific inquiry because ‘[j]udicial misconduct cases are, by their very nature, sui generis.'” Matter of O'Connor, 32 NY3d at 128. A judge's behavior must be considered “in the aggregate” and the “’existence of a prior censure would be noteworthy regardless of whether it was related to the instant misconduct’ because ‘a heightened awareness of and sensitivity to any and all ethical obligations would be expected of any judge after receiving a public censure.’” Matter of Miller, supra, 35 NY3d at 490.
The level of discipline to be imposed by the Court of Appeals for judicial misconduct rests on its “assessment of the individual facts of each case, as measured against the Code and Rules of Judicial Conduct and the prior precedents of [the] court.” Matter of Miller, supra, at 489. A judge's refusal “to acknowledge the impropriety of his behavior” is “particularly relevant to the question of appropriate sanction.” Matter of Duckman, 92 NY2d 141, 154 (1998).
Removal
In Matter of Duckman, supra, petitioner, a Judge of the Criminal Court of the City of New York, was removed from office by a divided Commission (7 of 11) which issued five separate opinions and split 7 to 4 on the issue of sanctions.
One of the four Commission members who voted for censure rather than removal expressed the view that “a jurist who has sat on over 50,000 cases should not be removed for misconduct in only 19 cases” (145). The decision was upheld by a divided Court of Appeals (5 to 2) with Judges Titone and Bellacosa each writing a separate dissent supporting a lesser sanction of censure (157-170).
Transcripts of the court proceedings established that petitioner “willfully disregarded the law in disposing of the criminal charges in 16 cases: 13 dismissals for facial insufficiency, one purportedly in the interests of justice, and two adjournments in contemplation of dismissal (ACDs)."
Cases were dismissed “in the interest of justice” and "without notice or an opportunity for the prosecution to be heard, without allowing an opportunity to redraft charges, without requiring written motions, and in the case of ACDs, without the consent of the prosecutor.” (146, 150). Petitioner dismissed these cases “in knowing disregard of requirements of the law” and manifesting “abusive, intemperate behavior …, at times not permitting the [prosecutor] to make a record of an objection either to the disposition or in response to the accusations.” (146).
Petitioner dismissed many cases “for facial insufficiency because the prosecutor refused to agree to petitioner's requests for an adjournment in contemplation of dismissal or to offer a plea to a violation. In others, petitioner simply believed that the cases should not be prosecuted.”
He explained to the Commission that "there were times where [he] did things in the interests of justice, using the guise of facial insufficiency" to dispose of a case when he "thought it was right to do it."
In his words: "Sometimes in an effort to do justice, I used the vehicle of dismissals for facial insufficiency without making defense attorneys put their motions in writing, without giving the people an opportunity to amend or redraft, and sometimes without giving the people an opportunity to be heard fully.”
In his dissent, Titone stated: “It is clear from the public record that petitioner was targeted for investigation and formal discipline because of the publicity he received in connection with a routine bail decision he made in a misdemeanor prosecution involving one Benito Oliver. Some three weeks after his release on bail, Oliver located his former girlfriend, Galina Komar, shooting her and then himself. The following day, the incident was reported by the New York City tabloids in sensational headlines which implied that petitioner was somehow to blame for the tragic incident” (157-58).
“The lurid newspaper coverage was followed only a few days later by a letter from the State Senate Majority Leader to the State Commission on Judicial Conduct demanding that petitioner's fitness be investigated immediately. At the same time, Governor Pataki initiated his own 'investigation' of petitioner. These actions by two of the state's most powerful elected officials were part of a larger political climate in which Judges were increasingly being scapegoated.” (158).
In a separate dissent, Judge Bellacosa stated: “The heavily relied-on set of specifications in the instant case boils down to the overarching charge that Judge Duckman improperly handled 16 criminal proceedings: 13 dismissals for facial legal insufficiency, one dismissal in the interests of justice, and two adjournments in contemplation of dismissal. The accusations are that the Judge knowingly and wrongly dismissed these cases, without notice or an opportunity for the prosecution to be heard, without allowing a chance to redraft charges, without requiring written motions, and in the case of ACDs, without the consent of the prosecutor” (162-163).
Bellacosa noted that more than 100 attorneys wrote to the Commission to protest the removal of Duckman (166) and that “various witnesses called by the Judge, and even by the Commission, portray the Judge as an unbiased and knowledgeable Judge” (165). He recognized that some of the Judge’s rulings “were statutorily unauthorized and irregular devices; they constitute improper means to reach debatably correct ends."
"While they should not be countenanced, they do not equal disciplinary misconduct at the egregious level for removal from office. They absolutely do not represent a pattern of conduct in any realistic context and appraisal of the full record of this judge's career … Thus, these few, never-appealed and disciplinarily resurrected remnants of cases are not so out-of-line as to justify removal of this Judge from his judicial office.” (163).
In Matter of Mulroy, 94 NY2d 622 (2000), petitioner, a Judge of the Onondaga County Court, was removed from office after a three-day evidentiary hearing before a Referee whose findings with respect to four charges of serious judicial misconduct were sustained by the Commission and Court of Appeals.
With respect to charge I, “petitioner made derogatory racial remarks about a crime victim in an attempt to induce a plea offer.” “While attending a charity event, petitioner initiated a conversation with a prosecutor concerning a pending, four-defendant murder case. During that conversation, he urged the prosecutor to ‘be reasonable’ in offering pleas to two of the defendants, and that he should not worry about ‘giving away’ the case because no one cared, since the 67-year-old murder victim was ‘just some old [derogatory epithet redacted].’
"These words, as well as the context in which they were uttered, are indefensible. Petitioner's racially charged assessment of the case not only devalued the victim's life but also cast doubt on the integrity and impartiality of the judiciary and, by itself, puts into question petitioner's fitness to hold judicial office.” These were not the only disparaging remarks petitioner made.
Charge II arose from “petitioner's equally unseemly conduct during jury deliberations in a rape case. Fearing protracted deliberations, petitioner began to engage in intemperate behavior on the Bench. In an outburst of profanity, petitioner declared that he detested Utica—where the trial was being held—and wished to return to Syracuse because it was ‘men's night out.’ He accused the prosecutor of ‘overcharg[ing]’ the case and pressed her to offer a plea to a misdemeanor charge so that he could ‘get out of this f****** black hole of Utica,’ threatening to declare a mistrial if she refused” (657).
Finally, as to charge VII, “the evidence demonstrates petitioner's lack of candor during his testimony as a character witness in a criminal trial. Petitioner testified that he had discussed the defendant with two named attorneys when, in fact, he had not" (658).
The Court of Appeals found that petitioner's “judicial record cannot excuse racial epithets and ethnic slurs in the official and quasi-official context in which they were uttered, attempts to influence dispositions, intemperate behavior and false testimony" (658). It concluded that petitioner's pattern of misconduct warranted removal.
In Matter of Blackburne, 7 NY3d 213 (2006), a divided Court of Appeals upheld the determination of a divided State Commission on Judicial Conduct that petitioner, a Supreme Court Justice with a previously unblemished record, should be removed from office for assisting a defendant who was participating in a court-mandated drug treatment program leave the courtroom and avoid being arrested on an unrelated charge of robbery and assault.
Petitioner stated that she “resent[ed] the fact that a detective came to this court under the ruse of wanting to ask questions when, in fact, he had it in his head that he wanted to arrest [defendant]. If there is a basis for him arresting you, he will have to present that in the form of a warrant."
"And it may occur at your [drug treatment] program. I'm not saying it won't. But what I am saying to you is that if you go back to your program and you do everything you are supposed to do at your program, if they appear with a legitimate warrant for your arrest then you follow that. I'm not trying to keep you from being arrested. I'm trying to keep you from being arrested today in my courtroom based on obvious misrepresentation on the part of the detective.” (217-218).
"Petitioner conceded the impropriety of her conduct but argued that censure, not removal, is the appropriate remedy. She maintained that “her actions, while improper, were motivated by a desire to protect the integrity of the Treatment Court, whose success rests on honesty and forthrightness … [S]he believed at the time that had she permitted Detective Devlin to arrest the defendant, it would have appeared as if the court were complicit in the detective's ‘ruse,’ which would in turn have undermined the trust between the Treatment Court and its participants that is essential to the court's effectiveness.”
The Commission found otherwise, that “petitioner acted out of anger and annoyance at the detective, who had, she believed, insulted her.” (219).
Petitioner contended, unsuccessfully, that “a judge ought not to be removed from office for a single act of bad judgment, unless the misconduct involved venality, breach of trust, moral turpitude or personal gain.” (219). The majority on the Court of Appeals disagreed, finding “[p]etitioner's conduct was unprecedented. We know of no instance in which a judge has facilitated the escape of an accused violent felon."
"Nor can petitioner's misconduct be properly deemed to have consisted of only a single, unconsidered act. Petitioner acted out of anger and pique that she had, she mistakenly thought, been lied to.” (220). Petitioner “abandoned her role as neutral arbiter and instead became an adversary of the police. This is completely incompatible with the proper role of an impartial judge.” (221).
In Matter of O’Connor, 32 NY3d 121, 126 (2018), the Commission removed petitioner, a Civil Court Judge in Queens County, from office because on numerous occasions he “acted impatiently, raised his voice, and made demeaning and insulting remarks, often in open court."
"In so doing, he violated his obligation to treat those appearing before him with dignity and respect. In addition, petitioner ‘abuse[d] [his] judicial power’ when he twice struck witness testimony and dismissed petitions for insufficient proof because of counsel's reflexive use of the word ‘okay.’” The Court of Appeals found petitioner guilty of “a willful disregard for the proper administration of justice” and that “the sanction of removal is appropriate.”
In Matter of Senzer, 35 NY3d 216, 219-20 (2020), petitioner, a Village Court Justice, who also maintained a private law practice, was removed from office for his repeated use of “manifestly vulgar and offensive” language and “sexist terms” in emails to the clients he represented in his private law practice that denigrated participants in the legal proceeding and used an “intensely degrading and ‘vile’ gendered slur to describe an opposing female attorney.”
The court found such “a pattern of conduct, engaged in over several months and combined with a prior caution by the Commission for making sarcastic and disrespectful comments to litigants during a court proceeding, constitutes an unacceptable and egregious pattern of injudicious behavior that warrants removal.”
Judges “are accountable for their conduct ‘at all times, including in conversations off the bench.’ … Because judges carry the esteemed office with them wherever they go, they must always consider how members of the public, including clients or colleagues, will perceive their actions and statements … [M]isconduct, no matter where it occurs, ‘subjects the judiciary as a whole to disrespect and impairs the usefulness of the individual judge.’” (220).
In Matter of Reeves, 63 NY2d 105, 111 (1984), petitioner, a judge of the Rensselaer Family Court, was removed from office after a divided Court of Appeals found that his conduct was “inconsistent with the fair and proper administration of justice and renders him unfit to remain in office.”
The evidence showed that petitioner had ordered a deputy clerk of Family Court to deliberately falsify reports to the Office of Court Administration by crossing off a list of 60 cases which were pending after the deadline for disposition. (108).
Petitioner also failed (in 34 cases) to advise litigants either of their right to counsel and to a hearing or of their right to the assistance of counsel, to confer with counsel before proceeding and to have counsel assigned if they could not afford to retain counsel. In two paternity cases he failed to advise the respondents of their right to remain silent and to have a blood-grouping test. (109).
When imposing this sanction, the court “recognize[d] that the purpose of judicial disciplinary proceedings is ‘not punishment but the imposition of sanctions where necessary to safeguard the Bench from unfit incumbents.’” (111).
In Matter of Putorti, 40 NY3d 359 (2023), petitioner, a Justice of a Whitehall Town Court and Village Court, was removed from office for brandishing his licensed, loaded and concealed firearm at a litigant who was waiting for his case to be called. “The litigant, a six-foot, 165–pound Black man, had been in Whitehall Village Court earlier in the year on a felony charge based on allegations that he brandished a knife at his wife and another man while they sat in a parked car."
The felony charge was dismissed on consent of the prosecution, and the litigant pleaded guilty to a misdemeanor charge in exchange for a one-year conditional discharge and fines and surcharges totaling $555. (362-363). “It was at a later appearance that petitioner brandished the firearm."
"Although petitioner claims that he ‘subjectively feared for his safety,’ he admits that he had ‘no reasonable basis’ to believe that the litigant ‘was about to use imminent deadly force,’ and that he was ‘not justified’ in brandishing the firearm.” (363).
While petitioner challenged the Commission’s finding of racial bias, he “acknowledged that his conduct ‘may have created the appearance of racial bias.’” (366). “Petitioner repeatedly recounted his story of the incident to others.” By repeatedly referring to the litigant as “a big Black man,” the Court of Appeals found that “petitioner exploited a classic and common racist trope that Black men are inherently threatening or dangerous, exhibiting bias or, at least, implicit bias.”
The court “stress[ed] that the ‘appearance of such impropriety is no less to be condemned than is the impropriety itself.’” The court found “the record amply supports the conclusion that petitioner's misconduct ‘transcends poor judgment’ and warrants removal.” (367).
Thomas R. Newman is of counsel at Duane Morris.
Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.
